C-322/82

J U D G M E N T OF T H E C O U R T 15 NOVEMBER 1983 '

Commission of the European Communities v Italian Republic

(Common organization of the market in fruit and vegetables — Quality control)

Case 322/82

Member States — Obligations — Failure to fulfil — No system of inspection set up as required by the Community rules — Justification relating to practical difficulties encountered — Justification not acceptable in view of the period elapsed since the Community provisions were brought into force (EEC Treaty, Art. 169)

In Case 322/82

N o 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables, and by not providing monthly statements relating to the inspections carried out during the previous month, has tailed to fulfil its obligations under Article 5 (1) of Regulation (EEC) N o 2638/69 of the Commission of 24 December 1969 laying down additional provisions on quality control of fruit and vegetables marketed within the Community, as amended by Commission Regulation (EEC) N o 2150/80 of 18 July 1980,

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (President of Chambers), P. Pescatore, A. O'Keette, G. Bosco, O. Due and U. Everling, Judges,

Advocate General: S. Rozès Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT

Article 2 (1) of Regulation No 23 English Special Edition 1969 (II), provides for the establishment of p. 611). common standards covering quality, sizing and packaging for each product or In particular Annex I to that regulation group of products. According to Article fixed the geographical regions which 2 (2) the products to which such quality were to be regarded as forwarding areas. standards apply are to be accepted for trade between Member States only if More specifically, as regards Italy, it they conform to those quality standards. listed five forwarding areas. They are to be accepted for import from third countries only if they conform to In Regulation (EEC) No 1035/72 of the the said quality standards or to standards Council of 18 May 1972 on the common that are at least equivalent. organization of the market in fruit and vegetables (Official Journal, English Special Edition 1972 (II), p. 437) the Article 3 (1) of Regulation No 23 Council codified the different provisions provided for the gradual application of concerning the sector in question. the quality standards to fruit and vegetables offered for sale on the home In particular Articles 2 to 7 of Regu- market of the producer Member State. lation No 1035/72 repeated earlier provisions concerning common quality In application of that provision, the standards and Article 8 thereof Council adopted, on 25 October 1966, reproduced Article 5 (1) of Regulation Regulation No 158/66/EEC of 25 No 158/66/EEC concerning checks October 1966 on applying common carried out by sampling. quality standards to fruit and vegetables marketed within the Community Regulation No 2638/69, which was (Official Journal 1966, No 192, p. 3282). maintained in force by the combined effect of Article 8 (2) and Anicie 41 (2) of Regulation No 1035/72 and Annex Article 5 (1) of that regulation provided IV to that regulation, was amended by for a check to be made by sampling at all Commission Regulation (EEC) No marketing stages and during transport, 2150/80 of 18 July 1980 (Official by the authorities appointed for that Journal, L 210, p. 5). In particular, purpose by each Member State, the Article 5 of Regulation No 2638/69 was names which were to be communicated replaced by a new provision, the first to the other Member States and to the paragraph of which provides that: Commission. The check was to be made preferably prior to dispatch from the production areas at the time of the "Each Member State shall furnish the packaging or loading of the goods. Commission with a monthly summary of the inspections carried out the previous month, showing in particular: The detailed rules for the application of Article 5 of Regulation No 158/66/EEC The origin of the goods inspected; were adopted, under the "Management Committee procedure", by Regulation (EEC) No 2638/69 of the Commission The destination of such goods; of 24 December 1969 laying down additional provisions on quality control The marketing stage at which inspection of fruit and vegetables marketed within was carried out, indicating the number the Community (Official Journal, of consignments inspected;

The Commission declared in that O n 28 May, and subsequently on 28 July opinion that, by not effecting quality 1980, the Commission sent reminders to controls of fruit and vegetables marketed the Italian Government, since there had within Italian territory, the Italian been no response to its letter of 15 Republic had failed to fulfil its January. obligations under Article 8 (1) of Regu- lation N o 1035/72 and that, by not providing the monthly statements By letter of 20 July 1981, the relating to the inspections carried out Commission reminded the Italian during the previous month, it had failed Government of its obligations concerning to fulfil its obligations under Article 5(1) quality standards in the fruit and of Regulation No 2639/69, as amended vegetable market, deriving in particular by Regulation No 2150/80. from Regulation No 2150/80. The Commission stated that by not furnishing the statements required under that regu- lation, the Italian Republic had failed to The Italian Republic was requested to fulfil its obligations under Article 5 (1) of adopt the measures needed to comply Regulation No 2638/69, as amended by with that reasoned opinion within two Regulation N o 2150/80. months from its notification.

The Commission regarded the Italian Government's failure to act as confir- II — W r i t t e n p r o c e d u r e mation of the information in its possession, according to which quality controls for fruit and vegetables marketed within the territory of the Since no action was taken in response to Italian Republic were not carried out the reasoned opinion, the Commission, satisfactorily. As a -result, the Italian by application lodged on 17 December Government, in the Commission's view, 1982, in pursuance of Article 169 (2) of was in default as regards its obligations the Treaty, brought an action before the

The written procedure followed the normal course; the Commission decided IV — S u b m i s s i o n s a n d a r g u m e n t s not to lodge a reply. of t h e p a r t i e s in t h e c o u r s e of t h e w r i t t e n p r o c e d u r e Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General the Court decided to The Commission notes that, under open the oral procedure without any Article 189 of the EEC Treaty, the preparatory inquiry. Italian Republic is required to give effect to Article 8 (1) of Regulation N o However, it requested the Commission 1035/72, by implementing the quality and the Italian Government to reply in controls of fruit and vegetables writing to certain questions; the parties introduced by Regulation N o 2638/69 complied with that request within the and, as from 1 January 1981, to comply prescribed period. with Article 5 (1) of that regulation, as amended by Regulation No 2150/80, by furnishing the Commission with the information provided for therein. I l l — C o n c l u s i o n s of t h e p a r t i e s It is quite clear, the Commission alleges, The Commission claims that the Court that the Italian Republic has not should: complied with that last provision. Moreover, the failure to provide statements on the inspections carried out (a) declare that the Italian Republic, supports the conclusion that the Italian Republic has no information to By not effecting quality controls of communicate. That conclusion confirms fruit and vegetables marketed within the information passed to the Com- Italian territory, has failed to fulfil its mission by trade circles and is, in its obligations under Article 8 (1) of turn, confirmed by the lack of response Regulation No 1035/72 of the to the letter sent in pursuance of Article Council of 18 May 1972; 169 of the Treaty and to the reasoned opinion. By not providing monthly statements relating to the inspections carried out during the previous month, has failed The Italian Republic's failure to fulfil its to fulfil its obligations under Article obligations is therefore patent. 5 (1) Regulation (EEC) No 2638/69 of the Commission of 24 December 1969, as amended by Commission According to the Government of the Regulation (EEC) No 2150/80 of 18 Italian Republic, it is clear from the July 1980; Commission's letter of 15 January 1980 that the application of the Community rules concerning the quality control of (b) Order the Italian Republic to pay the fruit and vegetables has raised and costs. continues to raise serious problems.

(a) The Italian Republic has for a very ational and financial terms. Moreover long time had a system of quality control such measures must be coordinated with of fruit and vegetables intended for the regions which, under Italian law, export to other countries introduced in have certain powers concerning the particular by Decree Law N o 1272 of 23 system applicable to the wholesale and June 1927 (Gazzetta Ufficiale [Italian retail trade in foodstuffs. Official Gazette] N o 181 of 6. 8. 1927) and by the implementing regulation approved by Royal Decree N o 2213 of Those difficulties have hitherto pre- 20 December 1937 (Gazzetta Ufficiale vented the setting up of an effective N o 8 of 12. 5. 1938). system of quality control within the national territory. They would be considerably lessened if, as the Italian As regards fruit and vegetables marketed Government has repeatedly requested, within the national territory itself, the the number of forwarding areas into inspections and sanctions provided for by which the national territory is divided the legislation in force are intended to were reduced. maintain standards of hygiene and protect the public health and also to prevent fraudulent dealing in foodstuffs. (c) The Government of the Italian Republic is well aware that, according to the case-law of the Court, those serious (b) The Community provisions, in difficulties are not regarded as valid just- particular Article 8 (1) of Regulation No ification for the failures to fulfil its 1035/72, established and organized for obligations against which the Com- the market in fruit and vegetables an mission's action is directed. The failures extremely detailed system of inspections in question were not however deliberate to be carried out at all marketing stages or intended to deprive the quality and during transport. The organization standards of practical effect within the of such a system was made even more national territory. There was merely a difficult by the division of Italian delay resulting from the problems of territory into five forwarding areas. organization and financing which the setting up of an effective system of control entails. For some time the competent national authorities have studied possible It states that every effort will be made to measures for the organization of an accelerate the steps being taken so that, effective system for the quality control of within a reasonable period, the pre- fruit and vegetables marketed within scribed system of control will apply also Italian territory. The two bodies within Italian national territory. designated to that effect, the AIMA (Azienda di Stato per gli Interventi nel Mercato Agricolo [State Organization for Interventions in the Agricultural Market] and the ICE (Istituto Nazionale V — W r i t t e n r e p l i e s of t h e p a r t i e s per il Commercio Estero) [National t o t h e q u e s t i o n s p u t by t h e Institution for Foreign Trade], maintain Court permanent contact with the Italian Ministry of Agriculture and Forestry in order to specify the measures to be The parties replied to the three questions adopted. Such measures represent a put to them by the Court essentially as considerable burden both in organiz- follows :

(a) The Commission considered that larger quantities of fruit and vegetables the quality controls for fruit and meets the need to facilitate the task of vegetables exported from Italian territory national inspection authorities. A system satisfy the requirements laid down, for whereby the consignor notifies the exports to other Member States, in inspection authority in advance of larger Regulations Nos 1035/72 and 2638/69 consignments enables the inspections to and, for exports to non-member be organized in a more flexible manner countries, in Regulation (EEC) No from the outset. Since such notification 486/70 of the Commission of 17 March might impose a heavy burden on the 1970 laying down initial rules on the inspection authority, the Commission quality control of fruit and vegetables sought to exempt large consignments exported to third countries (Official intended for markets close to the place Journal 1970, L 61, p. 11). For its part, of production from the obligation of the Government of the Italian Republic notification. The division of the Member provided information as to the detailed States with the largest areas into zones rules and conditions of those controls, serves to define, simply and in ac- which it similarly considers satisfy the cordance with existing trade patterns, the requirements of the Community pro- concept of a destination close to the visions. That system cannot however be place of production. Moreover, that extended to products marketed within division has no effect on the number of Italian territory because of the quantities inspections to be carried out and does involved (the quantity of fruit and not, itself, require a multiplication or a vegetables intended for domestic decentralization of the inspection auth- consumption is vastly greater than that orities. It should be noted that Regu- of fruit and vegetables' intended for lation No 2638/69 and the division into export) and for structural reasons areas provided for therein were adopted (inspections of exports are, in general, following the unanimous opinion of the carried out at specific centres — stations, Management Committee and therefore ports, airports and other premises — with the agreement of the representative whilst on the other hand, inspections of of the Italian Republic. products marketed within the national territory must be carried out at all marketing stages and during transport, preferably prior to dispatch from the production areas when the goods are being packed or loaded).

of formalities which that entails. It is enable it to carry out the prescribed therefore necessary to organize numer- inspections by sampling, having regard to ous peripheral administrative structures the fact that, in order to safeguard the which must be efficient yet sufficiently unity of the common market, it is flexible not to obstuct the movement necessary to ensure a certain balance of goods and with the necessary between the number of inspections of administrative staff and inspectors. The products intended for export and the Italian Government has never failed to number of inspections of products emphasize to the various Community intended for the national market. authorities that the application of quality The Government of the Italian Republic controls is rendered more difficult by the confirms that action is being taken to set division of the national territory into five up the type of organization necessary for forwarding areas. It has repeatedly the implementation of the controls in requested that an alteration be made in Italy. It would be easier to deal with the that division so that the Italian territory serious problem which that represents if may be regarded as a single forwarding the appropriate authorities took into area or, at least, so that the territory may consideration the Italian requests that be divided into only two forwarding the forwarding areas be abolished or areas: continental Italy and the main reduced and that an appropriate financial islands, (Sicily and Sardinia). contribution be made to the costs of the organization and the operation of the (c) In the Commission's view the pro- system. cedural steps which the Italian Republic must take in order to implement in Italy the quality controls provided for by the VI — O r a l p r o c e d u r e Community rules involve the adoption of a legal measure sufficient, for the At the sitting on 29 June 1983 the purposes of national law, to empower Commission, represented by G. Campo- one or more bodies, already in existence, grande, and the Government of the to effect quality controls' of fruit and Italian Republic, represented by Y. vegetables intended for the national Braguglia, presented oral argument and market or to set up a new body if their replies to the questions put by the necessary. As regards practical steps the Court. Italian Republic must supply itself with physical means (staff, technical equip- The Advocate General delivered her ment and infrastructures) sufficient to opinion at the sitting on 4 October 1983.

3 Those provisions, which were subsequently repeatedly amended and supplemented, were codified in Regulation (EEC) N o 1035/72 of the Council, Article 8 of which provides for the institution of checks on quality standards at all marketing stages and during transport, by the authorities appointed by each Member State. The same provision stipulates that Member States shall communicate to the other Member States and the Commission details of the authorities which they have appointed to be responsible for checking. Under the terms of Article 38 of the same regulation, Member States and the Commission are to communicate to each other the infor- mation necessary for applying the regulation. In addition, Member States are required to notify the Commission of provisions laid down by law, regulation or administrative action pursuant to the regulation not later than one month after their adoption.

4 By Regulation N o 2638/69 the Commission adopted, on the basis of the rules in force at that time, various provisions relating to the quality control of fruit and vegetables marketed within the Community. Article 1 of that

JUDGMENT OF 15. 11. 1983 — CASE 322/82

regulation provides that forwarding areas are to be established for the organization of inspections. Annex I thereto defines five separate forwarding areas for Italy.

s Article 5 of the same regulation required Member States to record irregu- larities in consignments of fruit and vegetables originating in other Member States and to keep the Commission informed "of cases of non-compliance which had been established. That requirement of notification was sub- sequently extended and defined in Commission Regulation (EEC) N o 2150/80, which came into force on 1 January 1981. The new version of Article 5 requires Member States to furnish the Commission with a monthly summary of the inspections carried out within their territories and in addition to provide information concerning cases of failure to comply in respect of consignments of fruit and vegetables from other Member States.

9 That letter, in its turn, was ignored. As a result the Commission drew up on 24 March 1982, in accordance with Article 169, its reasoned opinion which was communicated to the Italian Government on 31 March 1982. The Italian Government did not comply with the opinion and this action was accord- ingly introduced on 17 December 1982.

io The Italian Government emphasizes in the first place that it adopted some considerable time ago all the measures necessary for the introduction of a system of quality control for products intended for export. However, it does not contest the fact that it has failed to adopt appropriate provisions for the organization of the inspections provided for by the Community provisions on fruit and vegetables produced and marketed within the national territory. It maintains that the implementation of the organizational measures involved raises considerable problems of administration, coordination and financing which are rendered more difficult by the fact that the Italian territory has been divided into five forwarding areas. That factor increases substantially the administrative costs of setting up an effective system of inspection. In its view the number of areas must be reduced so that appropriate controls may be organized in Italy without creating excessive financial burdens.

1 1 Whilst appreciating the genuine nature of the difficulties with which the Italian Government is faced the Court cannot but note that the first steps in

JUDGMENT OF 15. 11. 1983 — CASE 322/82

establishing an organization of the market in fruit and vegetables were taken in 1962 and that the organization of the market in fruit and vegetables were taken in 1962 and that the organization of the market was given its present form in 1972. The forwarding areas were defined by the Commission in 1969 in accordance with an unanimous opinion of the Management Committee.

hereby:

1. Declares that the Italian Republic, by not affecting quality controls of fruit and vegetables marketed within Italian territory as required under Article 8 (1) of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables (Official Journal, English Special Edition 1972 (II), p. 427) and by not providing monthly statements relating to the

COMMISSION v ITALY

inspections carried out during the previous month, as required by Article 5 (1) of Regulation (EEC) N o 2638/69 of the Commission of 23 December 1969 laying down additional provisions on quality control of fruit and vegetables marketed within the Community (Official Journal, English Special Edition 1969 (II), p. 611) as amended by Commission Regulation (EEC) N o 2150/80 of 18 July 1980 (Official Journal, L 210, p. 5), has failed to fulfil its obligations under the Treaty;

2. Orders the Italian Republic to pay the costs.

M e i t ē n s de W i l m a r s Koopmans Bahlmann Galmot

1 — Translated from the French.